Dinkelspiel

A rehearing of this case ( 121 F. 318 , 57 C.C.A. 14 ) was granted upon the single question whether it appeared from the bill of exceptions that a certain paper known in the records as “Plaintiff’s Identification D” was in fact not offered in evidence or read to the jury on the trial of *224 the cause in the court below. The defendant in error relies upon the rule that upon the question whether or not a certain fact is proven in evidence, or certain evidence has been offered on the trial of a cause, the decision of the trial judge is final; and upon the further rule that error must be made affirmatively to appear; and that, unless excluded by the bill of exceptions, this court is bound to presume anything in support of the judgment of the court below. What we hold in this case is that it affirmatively appears from the bill of exceptions that the paper in question was never offered in evidence or read to the jury. The cause was tried before Judge Noyes, and the bill of exceptions was settled and certified by his successor, Judge Wicker-sham. The certificate is that all the evidence and proceedings in said cause were taken down in stenographic notes, which have been reduced to…